Democrats have a perverse legal logic on illegal immigration

President Trump signed the omnibus spending bill last week, even though he briefly threatened to veto it early Friday morning over immigration issues.

Although Republicans promised a meaningful conversation, Democrats have yet to propose a hard legislative solution to Deferred Action for Childhood Arrivals programs. Trump is right that immigration seems to have been abandoned, at least by Democrats on the Hill.

But among the Democrat media talking points, liberals have in recent months highlighted tear-jerking stories of families “torn apart” by deportation and individuals who claim to be beneficially contributing to society for decades, thus earning a supposed “right” to be in the United States undocumented.

The legal and specifically constitutional problem with these feel-good stories hyped by Democrats is that citizenship or lawful residency is a legal status issue, not a pre-political right, a property right, or a human right to invade a geographic area or political nation. This distinction is an important foundational one, because we have to understand what citizenship actually means in legal terms.

In most of the examples promoted by liberals, undocumented and illegal immigrants who have been here for a decade or longer are positioned as having a “right” to stay in the country. Citizenship or legal status, they are essentially arguing, can be acquired through adverse possession, which is the antiquated but sometimes still used property law concept that a person can acquire ownership of property essentially by squatting.

So the idea liberals are advocating is that illegal immigrants can acquire citizenship or legal status through a kind of adverse possession — that simply because a person who does not have legal status is physically on the land, although illegally, they should become legal merely through the passage of time on the land.

But this idea must be soundly rejected because a person’s immigration or citizenship status is not property — it is the legal relationship between the person and the government. Similarly, my legal status relationship to my parents is also not property. I am my parents’ daughter. This is a relationship based on birth that the government recognizes as a legal relationship for some specific purposes. That legal status may eventually entitle me to certain property rights (such as inheritance), but the fact that I am my parents’ daughter is not in itself property — it is a legally recognized relationship.

Moreover, there are two ways that I can be legally recognized to have the status of “daughter” — by birth or by legal process at a later time (adoption). But I cannot invade another father or mother’s household, squat for a period of time, or come in to their household invited as a guest for a period of time, and then claim a legal status of “daughter.” I may have a certain emotional attachment and am “like a daughter,” but in the eyes of the law and the government I am no different than any other unrelated person.

The same is true for undocumented immigrants. They do not acquire legal status simply by virtue of their physical presence in our nation’s geographic “household.” In relation to the government, a person may come into their citizenship or legal status by either birth or legal process at a later time — this is the immigration and naturalization process that Congress has the constitutional power to define.

One of the specific legitimate powers governments do have for the purpose of protecting the rights of citizens is to create the process for individuals who are seeking to come into their citizenship or to create a legal relationship with a government. This is known as the immigration process. Congress has the legitimate power to establish a uniform rule of immigration and naturalization, as provided by our Constitution in Article 1, Section 8.

Thus, the immigration debate must, at its core, recognize that the individual does not have an inherent or property right to claim a legal relationship with a government absent going through its process. We are concerned in this country with due process when a government seeks to foreclose or restrict certain individual rights, but part and parcel to due process is also requiring the individual to go through the legal process when seeking to benefit from the government. We have substantive and procedural due process for this purpose and that includes the immigration process.

Why should a person who does not even have a legal relationship established with a given government simply claim, take, and benefit from a legal status without due process any more than I even as a citizen may claim, take, and benefit from a government program without going through process? To advocate for legal status based on an illusory relationship is absurdly illogical, not to mention unconstitutional, and a sheer misstatement of the law.

Our constitutional power for Congress to act is clear. Government’s legitimate authority to provide Congress that power is clear. Conservatives must respond to the liberal emotional appeals with sound reasoning and preserve the constitutional process for all when contemplating any proposed immigration reform.

Jenna Ellis (@jennaellisorg) is a contributor to the Washington Examiner’s Beltway Confidential blog. She is an attorney, a fellow at the Centennial Institute, a radio show host in Denver, and the author of “The Legal Basis for a Moral Constitution.”